This question is suggested by an article that has been set to me for comment – Lexie Cartwright, Queensland police are exempt from every traffic law but drink and drug driving’ Gold Coast Bulletin, 9 January 2016.
The article follows “a Facebook photo on Sunday of an undercover police vehicle fitted with a speed camera parked on the side of the Nerang-Murwillumbah Rd and displaying an “L” plate on the back.” According to the journalist ‘The Gold Coast Bulletin uncovered the little-known fact that Queensland police are exempt from every traffic law, except those governing drink and drug driving.” The article quotes a “A Department of Transport and Main Roads spokesman” as saying ‘“There are special circumstances when it comes to police — the only things they are [not] exempt from is drink and drug driving,” the spokesman said.”
Unfortunately the advice from the spokesman is not correct. As readers of this blog will know the Australian Road Rules do give exemptions to police and the drivers of emergency vehicles. The Australian Road Rules are incorporated into Queensland law via the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld). Rule 305 says:
(1) A provision of this regulation does not apply to the driver of a police vehicle if—
(a) in the circumstances—
(i) the driver is taking reasonable care; and
(ii) it is reasonable that the provision should not apply; and
(b) if the vehicle is a motor vehicle that is moving—the vehicle is displaying a blue or red flashing light or sounding an alarm.
(2) Subsection (1)(b) does not apply to the driver if, in the circumstances, it is reasonable—
(a) not to display the light or sound the alarm; or
(b) for the vehicle not to be fitted or equipped with a blue or red flashing light or an alarm.
Further, rule 307 says:
A provision of part 12 [Restrictions on stopping and parking] does not apply to the driver of a police vehicle or emergency vehicle if, in the circumstances—
(a) the driver is taking reasonable care; and
(b) it is reasonable that the provision should not apply.
The Road Rules deal with all the sorts of rules that form part of the normal day to day traffic management but many offences are outside the road rules. For example ‘offences involving liquor or other drugs’ are contained within the Transport Operations (Road Use Management) Act 1995 (Qld). Because these offences are in the Act, the exemption set out in the Regulation, which only gives an exemption from other parts of the regulation, do not extend to offences set out in the Act. So far, the assertion by the spokesman is correct, police are exempt from the road rules but not offences regarding ‘drink and drug driving’.
There are other traffic offences that are also outside the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) and to which the exemptions in rules 305 and 307 do not apply. For example the offence of ‘Dangerous operation of a vehicle’ is set out in the Queensland Criminal Code, s 328A. The offence of ‘careless driving’ is set out in the Transport Operations (Road Use Management) Act 1995 (Qld) s 83. Police are not exempt from these offences so in that respect the Departmental spokesman who said that police were exempt from ‘every traffic law’ other than drink and drug driving offences was wrong.
To return now to the issue of the unmarked police care with the ‘L Plate’. The Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) says nothing about the use of “L” and “P” plates. For the use of “L” and “P” plates the relevant regulation is the Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld). This regulation says that the holder of a learners licence must display an ‘L Plate’ (reg 58) and that (reg 60):
A person must not display an L plate while riding or driving a motor vehicle on a road unless the person—
(a) holds a licence that authorises the person to learn to drive or ride the motor vehicle; or
(b) is a driver trainer.
Maximum penalty—20 penalty units.
(In Queensland, a penalty unit is $117.80 (see https://www.qld.gov.au/law/crime-and-police/types-of-crime/sentencing-fines-and-penalties-for-offences/) so the maximum penalty is $2356. The maximum penalty is that which a court can impose. Most traffic offences are dealt with by traffic infringement notice (or on the spot fine), which is usually much less. I accept, without checking, that the infringement notice fine is $94 as reported in the article. )
There is nothing in regulation 60 to say that it does not apply to police – but the legislature do know that they have to give an exemption to police. The regulation does provide that an ‘exempted police driver’ does not have to display red (reg 61(3)) or green (reg 62(3)) P plates. So the legislature is aware of the need to give relevant exemptions and the inference is that if they meant to exempt police from reg 58 they would have done so explicitly. In the absence of any explicit exemption then police are bound by reg 58 as much as anyone else.
But what does it mean to be ‘driving a motor vehicle on a road’? Clearly if the vehicle was being used to pursue a driver then it is being driven, but what about if it is parked? In this article we are told that the vehicle in question was photographed ‘fitted with a speed camera parked on the side of the Nerang-Murwillumbah Rd…’ (emphasis added). Further:
A Queensland Police spokesman confirmed the photograph was of an unmarked police vehicle but said it was not driven to or from the site with the “L” plates attached.
“These were placed on the vehicle as a cosmetic modification when it was stationary and in place for traffic enforcement,” a QPS spokesman said.
Many people will be aware that a person can be convicted of offences such as driving under the influence of alcohol if they are found sitting, or even sleeping in the driver’s seat of the car. In Queensland these offences apply to
(1) Any person who, …
(a) drives a motor vehicle, tram, train or vessel; or
(b) attempts to put in motion a motor vehicle, tram, train or vessel; or
(c) is in charge of a motor vehicle, tram, train or vessel;
See Transport Operations (Road Use Management) Act 1995 (Qld) ss 79(1), (1F), (2), (2AA), (2A), (2B), (2D) and (2J).
The Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld) r 60 has no such extended application, it is limited to a person ‘driving a motor vehicle’. The Transport Operations (Road Use Management) Act 1995 (Qld) does not define ‘driving’ but does define ‘driver’ as ‘the person driving or in charge of any vehicle, tram, train, vessel, or animal’. To be ‘driving’ is one aspect of being a driver, to be in charge is the other, but on that definition ‘driving’ and being ‘in charge’ of the vehicle are not the same thing. Without taking the matter further (which one would want to do if one was going to appear in court) I’m going to infer that the obligation not to display an L Plate applies when ‘driving’ a motor vehicle in the normal course of that word. If the vehicle is parked and no-one is in the driver’s seat then no-one is ‘driving’ the vehicle (even though someone is in charge of the vehicle and therefore it’s ‘driver’.) In that case no offence is committed. The matter would be arguable if there was a person in the driver’s seat and certainly if the motor was on – turning the motor on being a fundamental part of ‘driving’.
It would be my view that if the situation is as described by the police, namely that the vehicle was ‘not driven to or from the site with the “L” plates attached’ but ‘they were placed on the vehicle as a cosmetic modification when it was stationary’ then no offence was committed and that is because no-one was displaying the L Plate whilst ‘driving’.
What is not correct is that the police had some exemption that allowed them to display L Plates when not holding a learner licence. Whilst it is true that the police, and the drivers of emergency service vehicles, enjoy a broad exemption from the road rules, it is not true to say that the only rules from which they are not exempt are offences relating to ‘drink and drug driving,’ There are many rules for which they are not exempt, and incorrectly displaying L Plates – whilst driving – is one of them.